Same-sex couples have won some victories at the state and local level, most notably in Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)] which granted marriage rights in Massachusetts. However, there are 1138 federal rights granted to married heterosexual couples that are still unavailable to same-sex couples. In light of this fact, this author advocates repealing the federal Defense of Marriage Act (DOMA), and passing legislation at the federal level which would make it illegal to discriminate against homosexuals in the workplace.

An unusual aspect to this review article of federal Title VII as well as state cases is the inclusion as Part III a discussion of the Solomon Amendment that withholds federal funding from schools that deny access to military recruiters (see Rumsfeld v. FAIR, 547 U.S. 47 (2006)). Given the exceptional status of the military, the decision to include this material here among "ordinary" employers can be questioned. Nevertheless, like the other articles in this special issue, the material is succinct, offering a good broad sweep of the field especially helpful to nonspecialists.

DeMitchell and Fossey explore the use of the Equal Access Act (EAA) to challenge a school board's refusal to allow a gay-straight alliance to meet at a public high school. The EAA was enacted in 1984 expressly to allow student initiated religious groups to meet on public high school campuses.The Act makes it unlawful for any public secondary school which receives Federal funds and which has a limited open forum to deny equal access on the basis of religious, political, philosophical, or other content of speech to any students who try to meet within that limited open forum; and defines "limited open forum" as allowing one or more noncurriculum related student groups to meet on school premises. After reviewing Bd. of Ed. of Westside Community Schools v. Mergens, 496 US 226 (1990), the case in which the U.S. Supreme Court denied a challenge to the constitutionality of the EAA and articulated a test for determining if a student group is noncurriculum related, this article goes on to summarize each of the half dozen decided district court cases in which the EAA was used to challenge a school board's refusal to allow a gay-straight alliance to meet on a high school campus.

This article examines the Supreme Court’s Oncale (1988) case and how lower courts have interpreted it in applying Title VII sex discrimination law to same-sex sexual harassment. It urges development of more evidentiary routes for proving discrimination “because of sex” in such cases, beyond the three explicitly enunciated in Oncale.

The rationale of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that protects against sex stereotyping discrimination can protect a transsexual "experiencing discrimination based on the failure to conform to the employer's expectations of how stereotypical men and women act," it does not necessarily offer a useful precedent for a transsexual who in fact conforms to such stereotypes, but nonetheless suffers discrimination because gender identity does not match biological sex. The author reads Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) as filling this gap. (Later opinions in this case continued to favor the employee; see 525 F.Supp.2d 58 (D.D.C. 2007); 577 F.Supp.2d 293 (D.D.C. 2008)). This outcome promises to bring transsexuals fully within the protections of Title VII's "because of ... sex" rule, an achievement currently denied to other sexual minorities like gay men and lesbians because, as Eno notes, "Transsexualism is about being a man or a woman, not about being attracted to a man or a woman."

This short monograph examines leading cases concerning the rights of GLBT students to be free from harassment, the right to recognition under the Equal Access Act, First Amendment issues, and several curricular and programmatic issues. It includes a chapter with suggestions for school districts to protect students’ rights while avoiding litigation.

While courts--including the U.S. Supreme Court--have construed Title VII's "because of sex" language to include protections not explicit in the language of the statute, they have not exercised this same generosity to cover discrimination abased on sexual orientation. This reticence, seen by comparing the cases of Rene v. MGM Grand, 305 F.3d 1061 (9th Cir. 2002), and Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001), results in the line between gender stereotyping, which is prohibited, and sexual orientation discrimination, which is not, becoming "so thin that the distinction is confusing, unworkable, and must be wholly abandoned." These authors assert that the time has come to change this shortfall especially in the context of education.

Since the passage of the federal Defense of Marriage Act in 1996, same-sex couples have been excluded from federal benefits, even if their union is recognized by the state in which they live. This article advocates extending rights granted under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code to same-sex couples “where their respective states have legally recognized their relationship under civil marriage, civil union, or domestic partnership laws.”

Written as a guide for Colorado practitioners who represent gay, lesbian, bisexual or transgender clients, with workplace discrimination claims, this article presents legal strategies which may be used in support of such claims (not necessarily limited to Colorado). Strategies explored include gender non-conformance, Title VII retaliation, same-sex harassment, local non-discrimination ordinances, and wrongful discharge in violation of public policy. The article was presented by the Colorado Bar Association Labor and Employment Law Section.

The authors analyze date from three sources: a "Climate Survey" administered to 3,205 first year students at 37 law schools; a second survey targeting open LGBT law students, which netted 302 responses from 79 different law schools; and narratives collected from focus groups with eleven LGBT law student organizations across the country. While conditions for LGBT law students have improved since similar research ten years earlier, "this group still encounters substantial discrimination on law school campuses and in law school classrooms. This discrimination may result from overt acts, thoughtlessness, and/or neglect on the part of various actors in law school communities."

This collection of four pieces was originally presented as an AALS Workshop on the Solomon Amendment in the aftermath of Rumsfeld v. FAIR, 547 U.S. 47 (2006). Martha Ertman begins with a brief introduction to the issue. Joan Schaffner next uses events at the George Washington University Law School to ask "To what extent should student organizations be bound by the regulations that govern the GW placement office regarding military recruitment?" She believes that the "student interest in equal protection outweighs the student interest in employment," and that the FAIR decision "requires that law schools provide equal access but not equal treatment." James G. Leipold, Executive Director of NALP, reports results of a survey of law school responses, and offers three suggestions "for what law schools can and should do." Finally, the most personal account comes from Shalanda H. Baker, who tells of her expulsion from the military under DADT and being ordered to repay the costs of her Air Force Academy education.

If Title VII were amended to prohibit sexual orientation discrimination, this action would "prevent employers from developing unrestricted affirmative action programs for LGBT employees and unduly discriminate against straight employees" -- although the author offers little evidence that such programs are a serious likelihood. Nevertheless, such an outcome should make the change to the law attractive to conservatives.

An exploration of the history of discrimination against homosexuals, this article also warns of history’s nature of repeating itself. The author begins with discrimination against homosexuals in the Progressive Era (1886-1915), then shifts to the Cold War Era (1946-1961), in which homosexuals faced “unprecedented discrimination in the name of national security.” After laying the historical groundwork, the author demonstrates how all of the old arguments used to justify discrimination against homosexuals (particularly those of familial sanctity) have been revived. The author explains that we are witnessing this re-emergence of discrimination as a backlash in the wake of Lawrence v. Texas, and subsequent legal victories.

Arguing for a political (or social) solution to the issue of same-sex sexual harassment in the workplace, this author contends that courts are ill-equipped to understand the sexuality inherent in sexual harassment. Rather, the courts have gone out of their way to avoid arguments of sexuality, relying instead on a “false binarism.” The author argues that “the courts’ inability to adequately theorize sexuality precludes an equitable approach to adjudication of sexual harassment claims.” The article begins with a review of sexual harassment law and traces its progression over the past quarter-century.